Dismissed

Sri. L Ramachandra v. Sri. O K Harikumar

Karnataka HC6 Dec 2021CRP/98/2020

Case brief

AI extract

What is this about?

In this civil revision, the High Court of Karnataka dismissed the petition filed by a defendant challenging the rejection of an application to dismiss a title suit. The court held that the subsequent sale of the property to a power of attorney holder created a factual question regarding whether the cause of action survived the original plaintiff, which must be tried and not decided at the applicat

What did the court decide?

Dismissal of the civil revision petition filed against the order rejecting the application to dismiss the plaint.

Sri. L Ramachandra Vs Sri. O K Harikumar — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF DECEMBER, 2021 BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.98 OF 2020

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BETWEEN:

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SRI. L. RAMACHANDRA S/O LATE M. LAKSHMAIAH AGED ABOUT 65 YEARS R/AT NO.101, SUBBAYANAPALYA BANASAWADI MAIN ROAD M.S.NAGAR POST BENGALURU – 560 033

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...PETITIONER

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(BY SRI. VIJAYA SHEKARA GOWDA, ADVOCATE)

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AND:

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SRI. O. K. HARIKUMAR AGED ABOUT 55 YEARS S/O LATE O. N. KUTTAPPAN VOLTAS LIMITED, NO.27 KASTURBA ROAD BENGALURU – 560 001

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REP. BY HIS GPA HOLDER

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SRI. B. J. ANIL KUMAR AGED ABOUT 56 YEARS S/O SRI. JAYARAMA REDDY R/AT NO.57/5, 9^TH MAIN ‘C’ CROSS, VISVESHWARAIAH ROAD, BENGALURU – 560 068

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SRI. H. K. SADASHIVA AGED ABOUT 74 YEARS S/O LATE KRISHNAPPA GOWDA

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R/O HORAMAVU AGARA K.R.PURAM HOBLI BENGALURU EAST TALUK – 560 043

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SRI. GIRIDHAR AGED ABOUT 73 YEARS S/O LAKSHMAIAH NOW R/AT NO.10, SUBBAYANAPALYA BANASWADI MAIN ROAD M.S.NAGAR POST BENGALURU – 560 033

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SRI. N. SRIDHAR REDDY AGED ABOUT 48 YEARS S/O C. NARAYANA REDDY R/AT NO.19, 1^ST CROSS 2^ND MAIN, AGARA VILLAGE KALYAN NAGAR POST BENGALURU – 560 043

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…RESPONDENTS

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(BY SRI.SUHAS GOWDA M., ADV. FOR SRI. MUNIYAPPA, ADV. FOR R1)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC 1908 AGAINST THE ORDER DATED 08.01.2020 PASSED ON IA NO.2/2019 IN OS NO.25125/2011 ON THE FILE OF THE 74^TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU DISMISSING THE IA NO.2/2019 FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC FOR REJECTION OF PLAINT.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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This revision petition is filed by the defendant No.3 in O.S.No.25125/2011 pending trial before the 74^th Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru

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(CCH-75) (henceforth referred to as 'Trial Court' for short) by which an application filed under order VII Rule 11(a) and (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), by the petitioner-defendant No.3 was rejected.

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The suit in O.S.No.25125/2011 is filed for the

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following reliefs.

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"(a) Declare that the plaintiff is the absolute owner in respect of the schedule property, having conferred valid right, title and interest vide registered sale deed dated 02.07.1990;

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(b) Declare that the registered sale deed dated 24^th August, 2006 executed by the First Defendant through the 2^nd defendant in favour of the 3^rd defendant is not binding on the plaintiff;

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(c) Direct the defendants 3 and 4 to quit and deliver vacant possession of the schedule property to the plaintiff;

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(d) For future mean profits by holding an enquiry a contemplated in law;"

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The plaintiff represented by his Power of Attorney claimed that he purchased the suit property in

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terms of a sale deed dated 02.07.1990 from the defendant No.1. He alleged that the defendant No.1 had thereafter sold the suit property again to the defendant No.3 through the defendant No.2 in terms of the sale deed dated 24.08.2006. He contended that once the defendant No.1 had sold away the suit property, nothing else remained with him to convey the same to the defendant No.3. Hence, he sought for declaration of his title to the suit schedule property.

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The suit was contested by the defendant No.3, who filed his written statement and denied the execution of the sale deed dated 02.07.1990 in favour of the plaintiff. Based on these rival contentions, the suit was set down for trial.

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It is stated that during pendency of the suit, the Power of Attorney of the plaintiff had purchased the suit property in terms of the sale deed dated 16.10.2015.

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After P.W.1 was examined and after the Power of Attorney of the plaintiff furnished the copy of the sale deed dated 16.10.2015, the defendant No.3 filed an application under Order VII Rule 11(a) and (d) of CPC to reject the plaint on the ground that the cause of action did not survive for consideration and plaint was liable to rejected as it was barred by law.

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The Trial Court, after considering the averments of the plaint as well as the contention of the defendant No.3 in the application filed for rejection of the plaint, proceeded to reject an application in terms of the order dated 08.01.2020, which is impugned in the present revision petition.

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Learned counsel for the petitioner contends that when once the plaintiff had sold the suit property in terms of the sale deed dated 16.10.2015, nothing else survived and the cause of action, if any, did not survive for consideration, more so, as the purchaser had not participated in the proceedings in the suit. Learned counsel

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for the petitioner, however, was not able to demonstrate as to how the plaint was liable to be rejected or was barred under any law.

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Per contra , learned counsel for the plaintiff - respondent No.1 submits that since the proceedings before the Trial Court is stayed by this Court in the present revision petition, he could not file any application to come on record as assignee purchaser from the plaintiff. He submits that the purchaser is entitled to pursue the cause of action as he stepped into the shoes of the plaintiff.

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I have perused the plaint as well as the application filed by the defendant No.3 and also the sale deed executed in favour of the Power of Attorney of the plaintiff.

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The suit is filed on the premise that the plaintiff had purchased the suit property on 02.07.1990, which was executed by the defendant No.1. The plaintiff claims that the very same defendant No.1 had, thereafter,

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sold the suit property to the defendant No.3 and hence, he sought for declaration of his title to the suit property.

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The contention of the plaintiff that there is no cause of action for the suit cannot be accepted as a reading of the plaint itself would indicate that the plaintiff did have a cause of action and the question whether the cause of action subsisted or enured in favour of the purchaser from the plaintiff is a fact that needs to be considered by the Trial Court. This Court cannot ignore that the purchaser from the plaintiff steps into the shoes of the plaintiff as an assignee and is bound to be brought on record under Order XXII Rule 10 of CPC.

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The defendant No.3 cannot shake the foundation of the case of the plaintiff by asserting that the defendant No.3 is in possession of the suit property. He also cannot contend, at this stage, that certain recitals contained in the sale deed dated 16.10.2015 run contrary to the averments of the plaint. These are all questions of fact that needs to be considered by the Trial Court but

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certainly not while considering an application filed under Order VII Rule 11(a) and (d) of CPC.

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Hence, this revision petition lacks merits and the

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same is dismissed .

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Sd/JUDGE

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NBM

Sri. L Ramachandra v. Sri. O K Harikumar

Case brief

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Sri. L Ramachandra v. Sri. O K Harikumar

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